Bail

An application for bail is a court hearing to decide whether or not a person should be released from custody to then appear in court at a later date.

Being on bail means that a person does not have to wait in jail for a criminal case to be heard.

If granted bail, a person must agree to follow any orders made by the Court and to abide by any conditions set out in what is called 'an undertaking as to bail'. If a person breaches (disobeys) those conditions or does not attend court when required to, an arrest warrant can be issued. Often the conditions of bail will include payment of money by a surety as a guarantee that the person will appear in court as directed.

In the Supreme Court of Victoria, applications for bail are made to the Trial Division. These applications are usually heard by a Judge of the Criminal Trial Division.

Judge in Charge

Preparing an application for bail

There is no prescribed form for applications for bail, but applications should include all the information required by Order 27 of Chapter 1 Supreme Court (General Civil Procedure) Rules 2005.

Generally speaking, if a person intends to make an application for bail or to make an application for variation of existing bail conditions, a Notice of Intention to make Application for Bail will need to be prepared.

An Affidavit in Support of the Application for Bail must be attached to the Application. An affidavit in support must list all of the charges the applicant is applying for bail in relation to, the date of birth of the applicant and the name of the Informant.

Procedure for applying for bail

When a date has been set for the hearing, the Criminal Division Registry will contact the parties to notify them of the listing time and will also organise a gaol order so that transport can be arranged for the applicant to be brought in for the hearing of the application.

Relevant legislation

The following is a brief description of some important sections of the Bail Act 1997.

Bail Act 1977

Summary

Section 4

The reasons that any person accused of an offence may be granted bail, and the reasons why the court may refuse bail

Section 8

The matters the court may consider when hearing an application for bail.

Section 13

Only the Supreme Court of Victoria can grant bail to a person charged with treason. A person charged with murder may be granted bail by the Supreme Court or by the magistrate who commits the person for trial. In charges of murder or treason, bail can only be granted if the applicant can prove there are exceptional circumstances.

Section 18 (4)

Where the first application for bail is refused, another application may only be made to the Supreme Court when the applicant had no legal representation for the first application, or when there are new facts or circumstances that were not available during the first application.

Section 18A

The Director of Public Prosecutions may appeal against the granting of bail to an applicant.